Macron & Cowhey, P.C

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throughout every area of its prectice:
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FAQs

• How do you start an action for divorce or separation in New York?

  Filing a summons at the New York Supreme Court starts an action for divorce. The summons must then be served personally on your spouse and an affidavit of personal service must be filed in court within 120 days after the summons is served. If you start the divorce action by filing and then serving a summons without a complaint, your spouse has 20 days to serve a "notice of appearance" upon you. If you start the divorce action by serving a summons and a verified complaint, your spouse has 20 days to serve his or her answer to your complaint. The answer may also contain counterclaims against you. You have 20 days to reply to the counterclaims.

• What are the grounds for a divorce in New York?

  New York has six grounds for divorce. Four of the "grounds" are based on the "fault" of one of the spouses: • cruel and inhuman treatment, • abandonment for one or more years, • imprisonment for three or more years, and • adultery. • The two other grounds enable you to obtain a "no-fault" divorce. The spouse seeking the divorce must substantially comply with the provisions of the separation judgment or separation agreement. These two other grounds are: • one year of living apart under a separation judgment granted by a Court, or • one year of living apart under a separation agreement signed by the parties.

• Am I required to reside in New York before I can begin my divorce action?

  An action for divorce may be sought only when any of the following conditions of New York residency apply: • You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action, • You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action, • The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action, • The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action, or • Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action.

• How long will it take to get divorced in New York?

  A simple uncontested divorce can be processed by the Supreme Court within 60 days. A complex contested divorce action, involving contested custody, support, valuation and property issues can take from one to three years.

• What are the laws in New York regarding property distribution?

  In New York State, property is distributed through "equitable distribution". Property is first classified as either "separate" or "marital". Generally, property acquired prior to the marriage is separate property and property acquired during the marriage is marital property. There are exceptions to these general rules. New York's property law is more complicated than most states and it is imperative that you hire an attorney who understands the vast exceptions under marriage acquired during the life of the marriage.

• What are the laws in New York regarding spousal support?

  According to New York law, either spouse may be awarded maintenance, without regard to marital fault, based on consideration of the following factors: • income and property of the spouses, including any marital property divided as a result of the dissolution of marriage; • any transfer of property made in anticipation of divorce; • duration of the marriage; • wasteful dissipation of marital property; • contribution of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, childcare, education, and career-building of the other spouse; • tax consequences to each spouse; • any custodial and child support responsibilities; • ability of the spouse seeking support to become self-supporting and the time and training necessary; • any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage; • whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse; • age and health of both spouses; • present and future earning capacities of both spouses; and • any other factors the court deems just and equitable.

• What is the difference between an agency adoption and an independent adoption?

  In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of any agency involvement, although typically a lawyer is engaged to make sure that all legal requirements are met.
  
  Each type of adoption process has its advantages and disadvantages. Using an agency can be beneficial, for example, because agencies are in the business of locating children and matching them with parents, and they are familiar with all of the requirements, which can be overwhelming to prospective parents and birth parents alike. In international adoptions, especially, it can be advantageous to have someone who knows the ropes intercede on the prospective parents' behalf. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. Some agencies, however, have selection criteria that may screen out certain prospective parents, and waiting times can be very long.
  
  Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know and "select" each other. Adoptive parents may be able to circumvent an agency's selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

• Under what circumstances will the court award alimony or spousal support?

  The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.
  
  Although historically spousal maintenance was typically awarded to homemaker wives, to be paid by breadwinning husbands, that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
  
  Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete childrearing responsibilities, after which time he or she can be self-sufficient. If one spouse is unable to get a good-paying job, however, due perhaps to health or advanced age, the support award may be permanent.
  
  The amount and duration of alimony depends on several factors, including:
  • The length of the marriage; • The age of each spouse; • The health of each spouse; • The ability of each spouse to be self-supporting, including a consideration of responsibilities to the parties' minor children, if any; • The income of the primary breadwinner; and • Standard of living the parties enjoyed during the marriage.

• How is the amount of child support calculated?

  Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary significantly from state to state, but they are all generally based on the parent's incomes and expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. It is important to remember, however, that the guidelines are just that-guidelines-and they are not fixed amounts that must be applied under any and all circumstances. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.
  
  Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including
  
  • The child's standard of living before the parents' separation or divorce; • The paying parent's ability to pay; • The custodial parent's needs and income; and • The needs of the child or children, including educational costs, daycare expenses, and medical expenses, such as for health insurance or special health care needs.
  
  Judges will often review a financial statement completed by each parent that lists all sources and amounts of income and expense before issuing an order. If any of the listed items changes significantly, either parent may go back to court and ask for an increase or decrease in the amount of child support ordered.

• Once a court issues a child support order, can the amount of support that is paid be changed?

  The amount of child support is modifiable under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable. Example: If the payer parent loses his job and asks the custodial parent if he can go a few months without paying support until he has a new job, the custodial parent may voluntarily agree to this modification. If, however, she later decides that she wants to collect the amount of support that went unpaid during that temporary period, the court might support her if it never formally approved the change.
  
  When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been some fairly significant change in circumstances that justifies the change, such as a significant increase in either parent's income through a remarriage or job change or a substantial change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support, but generally these periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
  
  Other anticipated changes that can be provided for in the original child support order include a reduction upon the emancipation of each child, an increase when a child enters college, or any other change based on an event that the parties anticipate and that will have an impact on need or ability to pay.